A Miami photojournalist has recovered a video documenting his arrest by police …

A Miami journalist has recovered video of police officers arresting him after it was deleted from his camera. The man was covering a police effort to evict Occupy Miami protestors. He plans to file a complaint with the police department and with the United States Department of Justice.

On January 31, Miami police evicted Occupy Miami protesters from their downtown campsite. On hand to cover the action was photojournalist Carlos Miller. Along with protestors and other journalists, he was pushed down the street by a line of police in riot gear. He tried to circle around the block to return to his car, but he found his path blocked by a second line of police officers.

The police weren't arresting the other journalists around him, so Miller said he assumed he would be allowed to cross this second line of officers to return to his car. But when he approached one of the officers, he was stopped and placed under arrest. Upon his release the following morning, he found that several videos he had taken, including the one documenting his arrest, had disappeared.

Miller has since recovered some of the missing video, and it appears to back up his story. Though some crucial sequences are missing, the video shows Miller approaching a female police officer, who blocks his path and then calls other officers over to help arrest him.

"You were given a dispersal order, sir, and you were told you were gonna be placed under arrest," she told Miller in the video. "We don't want to have to hurt you," she said.

"I'm not doing anything," Miller responded. "I'm not resisting."

Constitutional violation?

Miller is a member of the National Press Photographers Association. The organization's general counsel, Mickey Osterreicher, sent a letter to the Miami-Dade Police Department protesting Miller's arrest.

Miller was charged with a single count of resisting arrest. "Aside from a blatant violation of Mr. Miller’s First Amendment rights to record matters of public interest in a public place," Osterreicher wrote, "we do not understand how, absent some other underlying charge for which there was probable cause, a charge of resisting arrest can stand on its own?"

"We believe that the recovered video of the incident will show that officers acted outside of their authority, in violation of the First, Fourth and Fourteenth Amendments of the United States Constitution as well as the Privacy Protection Act of 1980 and similar protections provided by Florida law," he wrote.

Osterreicher also pointed to a recent case involving the Baltimore Police Department. In that case, the Obama administration weighed in with a brief arguing that police officers violated the Constitution when they seized a man's recording device and deleted its contents. The United States Court of Appeals for the First Circuit has also ruled that journalists have a First Amendment right to record the activities of the police in public.

Deletion can make things worse

Miller's recovery of his video is a reminder of an important fact about modern digital systems: files that get "deleted" aren't necessarily gone forever. Often the raw data is still on the device and can be recovered. And that means that police officers who delete videos not only expose their departments to liability, they may not even succeed in suppressing the embarrassing video.

Miller's efforts to recover the video were only partially successful, and he plans to take his camera to a forensic specialist in hopes of recovering the remaining segments. He also hopes to determine the exact time the video was deleted, which could substantiate his charge that it was deleted while under police control.

Once he has gathered all the evidence, Miller plans to file a complaint with both the police department and the Department of Justice, objecting to his arrest and the deletion of his videos. The case may further entrench the growing consensus that the Constitution protects the right to record the actions of police officers in public.

Carlos Miller has a history of being arrested by police. There are compelling reasons that he should be able to go places that he does (and you can see him insisting in his videos that he should be allowed to -- incessantly arguing with police officers), but he basically asks for this kind of behavior.

I find him to be rather rude and disrespectful. Kind of like he's asking for this kind of treatment.

Miller was charged with a single count of resisting arrest. "(...)we do not understand how, absent some other underlying charge for which there was probable cause, a charge of resisting arrest can stand on its own?"

This is the really terrifying part, in my opinion. He was arrested for resisting arrest...not even the pretense of other causes. I really hope this ends up in court, and this practice gets smacked down hard.

Yet another compelling example of how, if you're knowingly going into a situation where this might happen, you should arrange for your phone to automatically upload your pictures and videos to some on-internet storage, even if it's Google+. Simply deleting the files from the phone (or physically destroying the device) won't mean jack. It's doubtful that the police stopped what they were doing to delete the files immedately, and even if they break the device in the process of uploading the last segment, at least the earlier material will be safely online. (Edit: There are already services that do this, and Google+ is one of them: Just turn on the automatic upload option, and your pictures and videos go straight to a locked (and private) album on Picassa.)

And yes, I agree with others - this case *needs* to go to court, if only to expose the abuse of power that is arresting somone *solely* for the charge of "resisting arrest".

Carlos Miller has a history of being arrested by police. There are compelling reasons that he should be able to go places that he does (and you can see him insisting in his videos that he should be allowed to -- incessantly arguing with police officers), but he basically asks for this kind of behavior.

I find him to be rather rude and disrespectful. Kind of like he's asking for this kind of treatment.

EDIT: I don't think that the police are using correct judgement in these situations either. I just think that you get a lot better results when you're respectful. *shrugs*

So your point boils down to the fact that Carlos is correct, and the police officers are wrong, but because he was rude that somehow makes the police behavior a little better? That's not the way that it works, the police don't get to break the law because I don't display respect for their authority.

Someone needs to invent tech that streams photos and video from regular devices online in near real-time, deletion problem solved.

While it's not a catch-all solution, an Eye-Fi card and a mobile hotspot is a good enough solution for most cases, and works with a large number of existing imaging devices. Not perfect, but it's readily available and reasonably priced tech.

Carlos Miller has a history of being arrested by police. There are compelling reasons that he should be able to go places that he does (and you can see him insisting in his videos that he should be allowed to -- incessantly arguing with police officers), but he basically asks for this kind of behavior.

I find him to be rather rude and disrespectful. Kind of like he's asking for this kind of treatment.

Protip, don't record ANYTHING until you've taken the camera/device for data recovery.

Often times recovery of the data is as simple as creating an image of the SD/CF card, and then running PhotoRec on the image and sorting through the files it finds. It can even recover data if the card was quick reformatted...

Seems like a camera with a built-in or secondary memory storage would be a nice feature to have for people who think they might be subject to their cameras being seized and deleted.

Had the police report been filed yet? If not, it seems as if he missed a golden opportunity to allow the officers to submit a false report, assuming that the evidence had been deleted, and then announce that he had footage contradicting the official report. If the report hasn't been filed yet, they could still try to craft it around an explanation that doesn't contradict the footage.

So your point boils down to the fact that Carlos is correct, and the police officers are wrong, but because he was rude that somehow makes the police behavior a little better? That's not the way that it works, the police don't get to break the law because I don't display respect for their authority.

No; I think his point is that this guy goes out of his way to provoke a reaction and insert himself into the story. Inserting yourself into the story is like the #1 no-no of responsible, objective journalism. While he's right, the guy is a hack.

Who cares. I'm not trying to troll, but im sick of everyone who fancies themselves part of some tiananmen square event. The dude lying on the ground looking right at the camera with an american flag in his hand, or the old lady (known activist) staring at the camera covered in pepper spray... its all manufactured.. i find that more disturbing then a human being who's job is to keep the peace.(however poorly or goodly)

Just because you say you're not resisting doesnt mean you're not resisting.

Time for journalists to be working on or using high-speed wireless while recording, or some other means of ensuring that tampering with the camera won't make a difference. If transfer speeds can't support high enough quality, or if cops start jamming before a round up, maybe rig the camera to record through a cable to a drive embedded in your clothing.

Who cares. I'm not trying to troll, but im sick of everyone who fancies themselves part of some tiananmen square event. The dude lying on the ground looking right at the camera with an american flag in his hand, or the old lady (known activist) staring at the camera covered in pepper spray... its all manufactured.. i find that more disturbing then a human being who's job is to keep the peace.(however poorly or goodly)

Just because you say you're not resisting doesnt mean you're not resisting.

"Who cares." right back at you, big guy... So what if they were manufactured images? It doesn't change the fact that they resulted from genuine, disturbing abuses of police power. Rosa Parks and the Freedom Riders were deliberately "manufacturing" a situation too, are you going to stand up and defend segregation as well?

Time for journalists to be working on or using high-speed wireless while recording, or some other means of ensuring that tampering with the camera won't make a difference. If transfer speeds can't support high enough quality, or if cops start jamming before a round up, maybe rig the camera to record through a cable to a drive embedded in your clothing.

Gotta stay one step ahead.

There is tech out there like LiveU and TVU that do this with pro vid cameras allowing you to go live from anywhere similar to a satellite feed, only it uses cell modems to send the data back to a server at the studio, usually bonding 6-8 modems together. It's not cheap, costs about $2k-$3k a month to lease it, but if they take your camera after that, the station will still have everything you sent prior to it. And usually the modems are split between at&t, sprint and verizon so if you want to jam it, you'd have to jam them all, which is illegal to do anyway.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.